PUNEET BAJAJ Vs. BALDEV KUMAR PAHWA

JUDGEMENT

(1.) By this order, I shall dispose of the above two petitions, one preferred by the landlord and the other by the tenant, arising out of the same order dated 28th August, 2003 passed in RCA 541 of 2003.

(2.) Brief facts relevant for purpose of deciding these petitions are that the landlord Mahendra Singh Bajaj, who is no more in this world, had filed an eviction petition bearing number 153 of 1988 against the tenant Baldev Kumar Pahwa, proprietor of Pahwa Garments in respect of a shop let out to him on monthly rental of Rs.300/- on account of non-payment of rent under Section 14(1)(a) of Delhi Rent Control Act. Notice of this eviction petition was served upon the tenant and the tenant appeared in the proceedings of eviction petition but later on stopped appearing. The eviction petition under Section 14(1)(a) was allowed ex parte. However, an order under Section 15(1) was passed by the ARC and benefit of Section 14(2) of DRC Act was given to the tenant. The tenant filed an application under Order 9 Rule 13 Civil Procedure Code for setting aside the ex parte order passed in eviction petition number 153 of 1988 giving benefit to the tenant under Section 14(2) of DRC Act. In this application under Order IX Rule 13 CPC the tenant took a stand that he had given Rs.5,000/- in cash to the landlord, without any receipt, and the landlord had assured him that he shall not proceed further with the eviction proceedings and will withdraw the eviction petition and therefore he did not appear before the court. This plea of tenant was not believed by the ARC and the application filed by the tenant under Order 9 rule 13 CPC was dismissed by learned ARC on 17th March, 1994 observing as under:- Regarding other pleas of the respondent that the petitioner had accepted Rs.5000/- while the matter was pending and a compromise was reached also does not inspire confidence because the respondent was assisted by a counsel and once the matter is pending and the parties reached compromise it is recorded in the court as no compromise outside the court is recognized and admittedly when the parties were litigating and once there is litigation, how the respondent has paid a sum of Rs.5,000/- in cash without any receipt also cannot be believed without any prima facie proof of the transaction.

(3.) After the first eviction petition was allowed by the learned ARC vide order dated 27th July, 1989, the landlord sent a second default notice dated 21st November 1989 to the tenant alleging second default and demanded rent with effect from 1st July, 1989 up-to-date @ Rs.300/- per month along with 15% interest calculated from the date when rent of each month became due and for the period it was not paid. The landlord filed second default petition in March, 1993 and the same was registered as E-624/06/93. Vide order dated 22nd March, 2007, an eviction order under Section 14(1)(a) of DRC Act was passed by learned ARC holding that the tenant was guilty of second default. Against this judgment of learned ARC, tenant preferred an appeal before the learned Additional Rent Control Tribunal (ARCT) and the learned ARCT allowed the appeal of the tenant holding that there was no second default. Against this order of learned ARCT, the landlord has filed the present petition being CM(M) 910 of 2008. The tenant also filed a petition being CM(M) 1 of 2009 against the order of learned ARCT since the Tribunal gave a finding against the tenant about service of notice and upheld the decision of learned ARC that there was a valid service of second default notice on the tenant and also upheld that the tendering of rent by money order sent to the landlord received back by the tenant with the postal remarks the landlord was not found at the address was not valid tender of rent.